A battle over ski-area water rights that has been simmering in Colorado — and across the country — for several years has gotten the attention of the White House, and we’re glad to see it.

President Obama on Wednesday issued a statement opposing the Water Rights Protection Act, which passed Thursday in the U.S. House but must still go to the Senate.

The White House is right to send a strong signal about the unwise nature of this measure, which could pre-empt a compromise in the public interest.

The bill, sponsored by Rep. Scott Tipton, R-Colo., would put up road blocks to stop the federal government from re- asserting greater control over ski-area water rights.

Initially, it might sound like a no-brainer. Of course the government should allow the ski areas to keep water rights so they can keep producing the snow that is such an economic and recreational boon, right?

Unfortunately, it’s not that simple.

The U.S. Forest Service is attempting to re-establish stewardship of rights for water that originates on federal land. The goal is to ensure water stays with the public land used by resorts, even if ownership of the resort changes.

Beginning about 30 years ago in the region that includes Colorado, federal authorities started requiring ski-area permit holders to put water rights from public lands in the government’s name.

In 2004, the Bush administration changed policy, allowing ski areas to jointly hold water rights. When the Forest Service, under Obama, tried to change permit conditions to more closely follow historic practice in the Colorado region, the ski industry sued.

A federal judge ruled in 2012 that the process used to make permit changes was deficient.

Fortunately, there is room for compromise without another legal battle.

The Forest Service is creating, but has not yet released, a new ski-area water rights clause that could provide a solution. A solid compromise would be to allow resorts to keep water rights ownership, but require that the water remain with the land, regardless of whether ski resorts changed hands or business plans.

When released this spring, the draft will go through a full public vetting process, as it should.

Entire Colorado mountain towns and economies depend upon recreation on federal land, and it’s vital to ensure the people, through their government, retain control of the water that is the lifeblood of those communities.

A measure that would prevent federal agencies from requiring ski areas, ranches, municipalities and others to sign over water rights passed the U.S. House on Thursday in the shadow of a threatened veto. The Water Rights Protection Act by U.S. Rep. Scott Tipton, R-Colo., lost the support of U.S. Rep. Jared Polis, D-Colo., who had co-sponsored the measure, but did garner a dozen Democrat votes in passing 238-174.

Sen. John Barrasso, R-Wyo., introduced a companion measure in the Democrat-dominated Senate and Tipton said after the vote that he hoped to win the support of Colorado’s senators, Michael Bennet and Mark Udall, both Democrats. Senate President Harry Reid, a Nevada Democrat, also ought to be supportive, Tipton said.

“We’re pleased to know it passed the House,” said Club 20 Executive Director Bonnie Petersen. “Hopefully it will pass in the Senate. This is critical to everybody in the West.”

The White House, in a statement of administration policy, said the bill “is overly broad and could have numerous unintended consequences,” including damaging the ability of the Agriculture and Interior departments’ ability to manage resources for the benefit of public land and the environment, as well as maximum beneficial use of federal water facilities ensuring that adequate water is available for fisheries or threatened or endangered species.

In arguing against the measure, Polis also said the bill was overly broad and that he intended it only to apply to ski areas…

The breadth of the bill was intended from the beginning, when Polis originally signed on, Tipton said, noting that it still is supported by the National Ski Areas Association, which sued the U.S. Forest Service when it required ski areas, including Powderhorn Mountain Resort, to sign over water rights in order to obtain a permit to operate on the Grand Mesa National Forest.

The veto threat was pre-emptive, Tipton said, calling on the Senate to take a vote on the bill and let the legislative process go forward.

A federal judge ruled in the suit brought by the ski areas that the Forest Service had failed to comply with federal law in invoking the rule under which it demanded the water rights.

A dispute between Colorado ski areas and the Forest Service has caught the attention of the White House, which on Thursday threatened to veto a water-rights bill that U.S. Rep. Scott Tipton, R-Cortez will present on the House floor today.

Meanwhile in Denver, state senators delayed a vote on a related bill by Sen. Ellen Roberts, R-Durango, out of concerns that it improperly singles out the Forest Service.

The bills in Washington and Denver address an effort by the Forest Service to gain title to water rights used by ski resorts that lease federal land.

“This is important to the West. We hope the president won’t politicize this because this isn’t a Republican or Democrat issue,” Tipton said in a phone interview.

Rep. Jared Polis, D-Boulder, is a co-sponsor of Tipton’s bill, and a few other Western Democrats also support it…

“Basically, it comes down to, does Colorado decide its water-rights system, or does the federal government?” [Sen. Ellen Roberts] said Wednesday at a meeting of the Senate State Affairs Committee…

Cities that have reservoirs on federal land worry that if the Forest Service can take ski water rights, nothing would stop them from claiming reservoirs, too, Moseley said.

However, Sen. Matt Jones, D-Louisville, defended the Forest Service and said most Coloradans would support the principle of keeping ski water rights reserved for skiing.

“This isn’t the mean old federal government telling people what to do. This is the steward of our lands,” Jones said.

Sen. Jessie Ulibarri, the committee’s chairman, delayed a vote on Roberts’ bill, saying he thinks it’s an important topic but that the bill might illegally single out one entity, the Forest Service.

As the hearing was happening in Denver, the Obama Administration lowered the boom on Tipton’s bill in Washington by releasing a “statement of administration policy” – essentially, a veto threat.

The U.S. House is scheduled to vote on Tipton’s bill today. It would forbid federal land-management agencies from claiming water rights as a condition of a land-use permit.

“The bill threatens the Federal government’s longstanding authority to manage property and claim proprietary rights for the benefit of Indian tribes and reserved Federal lands, and the broader public that depends on the proper management of public lands and resources,” the unsigned administration statement said…

Tipton has allies, as well. The influential U.S. Chamber of Commerce has come out in support of his bill, and it is expected to pass the House this afternoon.

However, the version of Tipton’s bill in the Democratic-controlled Senate has stalled and has not received a hearing, and Obama’s veto threat could seal its fate.

The U.S. House on Thursday passed a controversial bill triggered by the U.S. Forest Service’s equally controversial move to assert federal ownership over water rights held by ski areas to tap public streams for snow-making.

The 238-174 vote — with every Republican in favor and all but 12 Democrats opposed — capped a twisted legislative journey that began with a 2012 court fight in Colorado and ended with a bill that critics fear would handcuff federal oversight of water use by ranchers, farmers, oil companies, municipalities and other parties…

The Water Rights Protection Act had the backing of virtually all ski resorts in the United States. Among them are 13 ski areas in Washington, including Crystal Mountain, The Summit at Snoqualmie and Stevens Pass.

But the National Ski Areas Association in recent weeks had been pushing lawmakers to narrow the legislation’s scope out of fear the Democrat-controlled Senate would otherwise reject it. Rep. Jared Polis, a Colorado Democrat and one of the bill’s 15 co-sponsors, withdrew his support and pushed for an amendment to restrict the bill only to ski-area permits.

Instead, House Republicans approved a broader bill that would apply to the Interior Department and the Department of Agriculture, agencies that encompass the Fish and Wildlife Service, Bureau of Land Management, National Park Service as well as the Forest Service.

Rep. Doc Hastings, R-Pasco, chairman of the House Natural Resources Committee, managed the bill on the House floor as Democrats denounced it as sloppy legislation that would bring far-reaching consequences.

Democrats also repeatedly pointed out that Hastings’ committee held the only hearing on the bill on Oct. 10, in the middle of the 16-day federal- government shutdown and with no witnesses testifying in opposition.

Hastings rejected the criticisms and said the bill simply would protect private property from confiscation under President Obama’s “imperial presidency.”

Last month, Representatives Scott Tipton, R-Colo., and Jared Polis, D-Colo., introduced H.R. 3189, the so called “Water Rights Protection Act.” While the bill was disguised as a minor “fix” for a narrow water rights conflict between Colorado’s ski industry and the U.S. Forest Service, it is in fact a sweeping attempt to stop federal agencies from protecting fish, wildlife and recreation on our public lands.

If passed, the bill would allow private water users across the country to dry up rivers on public lands with impunity. It would prevent federal agencies within the Department of Agriculture and the Department of Interior from protecting fish, wildlife and river recreation.

For instance, in Colorado, this could prohibit the Forest Service from requiring water diverters to leave some water in streams on National Forests to keep native cutthroat trout alive. It could also stop the Fish and Wildlife Service from requiring flows that help salmon find fish ladders so that they can safely pass over dams. It would potentially destroy broadly supported multi-year and multi-million dollar settlement agreements to restore American shad, salmon and steelhead fisheries at hydropower facilities. It even undermines fundamental principles of states’ rights by creating a new federal definition of a water right. At the very least, it would create mountains and mountains of litigation.

The House Natural Resources Committee held the only hearing on this bill during the government shutdown, preventing agencies from providing input on how it would affect public lands. When the Departments of Interior and Agriculture did weigh in, they strongly opposed the bill. They were joined by leading Democrats on the House Natural Resource Committee and more than 60 conservation and recreation groups, including American Rivers, American Whitewater, Trout Unlimited, Defenders of Wildlife, the Sierra Club and National Parks Conservation Association.

We understand that the ski industry has a legitimate need for certainty about their water rights for snowmaking. But they don’t need this bill to provide that certainty. Last week, thanks to the leadership of Senator Mark Udall, the U.S. Forest Service pledged to quickly resolve the dispute over water rights on national forest land in Colorado, protecting rivers on public lands and upholding important principles of water law. This bill is not necessary, and the ski industry has conceded as much. Yet this supposedly “green” industry has inexplicably doubled down and reaffirmed their support for an agenda of preventing federal agencies from protecting our rivers and public lands.

As the list of the bill’s supporters makes clear, this effort is being driven primarily by the farm lobby. We are puzzled why the ski industry — which goes to such great lengths to tout its environmental sustainability bona fides — would continue to give cover to big ag by supporting a bill that would do so much damage to our nation’s rivers, particularly when the problem the bill purports to address has already been solved.

We encourage your readers to call Steamboat Ski Area and ask them why they support this attack on fish, wildlife and river recreation.

The Colorado Farm Bureau said a U.S. Forest Service decision to no longer pursue forcing ski areas to surrender their water rights to renew their operating permits bodes well for farmers.

The Forest Service’s decision represents a “huge win” for private property owners, including farmers with grazing permits, the Farm Bureau said in a statement.

“We were concerned that if the Forest Service could demand this from ski areas, it was only a matter of time until they went after ranchers who also use Forest Service lands to do the same to renew their grazing permits,” Farm Bureau President Don Shawcroft, said in a statement.

A measure that would bar federal agencies from demanding state water rights in exchange for permits to use federal lands will get a vote in the U.S. House. The House Resources Committee on Thursday passed H.R. 3189, the Water Rights Protection Act by U.S. Reps. Scott Tipton, a Republican, and Jared Polis, a Democrat.

The U.S. Forest Service said this week that it would not require ski areas to surrender water rights in exchange for permits to operate on forest lands. The imposition of that requirement prompted the legislation, but Tipton said legislation is needed.

“Water users need certainty that all federal land management agencies, not just the Forest Service, are prohibited from future attempts to take privately held water rights,” Tipton said in a statement.

The National Ski Areas Association said the measure is necessary to give stability to its members.

“The policy change announced by the agency is the fourth change in Forest Service water policy for ski areas in 10 years,” the association said.

Today, the House Natural Resources Committee passed Rep. Scott Tipton’s (R-CO) Water Rights Protection Act (H.R.3189) with bipartisan support, clearing the effort to protect privately-held water rights from federal takings for a vote in the House of Representatives.

Over the years, the Forest Service has engaged in numerous attempts to require the transfer of privately-held water rights as a permit condition, amounting to an outright federal taking. During an October 29 House Natural Resources Subcommittee on Public Lands and Environmental Regulation hearing water users testified about their experiences with federal land management agencies interfering with their privately held water rights. Read more here.

“While I am encouraged that the Forest Service acknowledged their flawed and unnecessary policy, and has indicated that their future water rights clause may no longer require the transfer of privately-owned water rights, this clause has yet to be seen, they have aggressively pursued such takings for over two years, and their comments indicate that we will likely only see a temporary fix for one group of water users in one region,” said Tipton. “Water users need certainty that all federal land management agencies, not just the Forest Service, are prohibited from future attempts to take privately-held water rights. Additionally, H.R. 3189 would prohibit future Forest Service officials from shifting course and engaging in similar water grabs in the future.”

The National Ski Areas Association (NSAA) reiterated support for H.R. 3189 in light of the Forest Service announcement.

“Despite this announced change in policy, we still need Congress to pass the Water Rights Protection Act. The policy change announced by the agency this week is the fourth change in Forest Service water policy for ski areas in ten years. These changes are disruptive, create uncertainty and adversely impact our operations, planning and future growth. The ski industry can’t afford to be subjected to a different water policy with each Administration,” wrote Michael Berry, President of NSAA. “Only federal legislation can give us the long term protection we need of an outright statutory prohibition on the taking of our water rights by the federal government. H.R. 3189 is complementary to the agency’s efforts to develop a new policy.”

Tipton introduced H.R. 3189, the Water Right Protection Act, in September with bipartisan support from Rep. Jared Polis (D-CO). It has received strong support from a broad coalition of local, state and national stakeholders, and a companion bill is being carried in the Senate by John Barrasso (WY).

The Water Rights Protection Act:

Prohibits agencies from implementing a permit condition that requires the transfer of privately-held water rights to the federal government in order to receive or renew a permit for the use of land;

Prohibits the Secretary of the Interior and the Secretary of Agriculture from imposing other conditions that require the transfer of water rights without just compensation;

More coverage from John Stroud writing for the Glenwood Springs Post Independent. Here’s an excerpt:

On Wednesday, Forest Service Chief Tom Tidwell issued a statement saying his agency had agreed to a policy change, brokered with the help of U.S. Sen. Mark Udall of Colorado, that would protect water resources without asking ski areas to turn over water rights to the federal government.

Tipton, R-Cortez, responded Thursday after the House committee vote that, while “encouraged” by Tidwell’s statement, it only affects one group of water users.

The water rights bill, which has bipartisan support, is meant to protect the rights of other users as well, including agricultural operations and energy development, according to Tipton and several supporters of the bill from western Colorado…

“They [USFS] have aggressively pursued such takings for over two years, and their comments indicate that we will likely only see a temporary fix for one group of water users in one region,” he said.

Tipton said other federal agencies have also used the practice of requiring the transfer of private water rights in exchange for permitting, amounting to a “taking,” he said.

His bill would prohibit future Forest Service officials and other agencies from changing policy as leadership changes, Tipton said.

The [USFS] told Congress that it no longer plans to force ski areas to turn over their water rights as a condition for maintaining their operating permits.

Even so, the House Committee on Natural Resources passed a bill Thursday by Rep. Scott Tipton, R-Cortez, that would forbid the Forest Service from demanding that permit holders – from ski areas to ranchers – relinquish their water rights…

[US Senator Mark Udall] said, “The Forest Service’s statement on these water rights is a victory for our state and our resort communities that depend on outdoor recreation, and it’s a victory I am proud to have fought for.”

Udall and his staff had several meetings with senior Forest Service officials during the last several months to explain the policy’s potential harm to Colorado, said Udall spokesman Mike Saccone.

The Forest Service has tried sporadically for years to get legal control over snowmaking water rights, because of worries the rights could be sold to real estate developers or others not interested in using the water for skiing.

A federal judge in Denver slapped down the Forest Service’s last attempt in 2012 to make a national ski water policy, but the agency’s attempts to give it another shot upset Republicans and Democrats in the state Legislature and Congress.

“Winter Park owns water rights, like any other ski area,” said Winter Park Resort planner Dough Laraby. “Water rights cost money, and you need them to operate a ski area.”

The National Ski Areas Association, or NSAA, had sued the U.S. Forest Service over the permit changes, winning a victory in 2012 when a U.S. District judge found they violated federal procedural law. The NSAA applauded the federal agency’s recent decision, but said ski areas still need more legislative protections against future policy changes.

“This is the fourth change in 10 years, we can’t afford to be subject to changes with every administration that comes along,” said Geraldine Link, public policy director with the NSAA. “We’re looking to Congress to put protections in place. At a minimum, you can’t take water rights without compensation.”

The U.S. Senate and House of Representatives introduced a bill in late October, called the “Water RIghts Protection Act,” that would prohibit the U.S. Forest Service from adding water rights conditions to permits, including those issued to ski areas that operate on federal forestland, like Winter Park Resort. U.S. Sen. Mark Udall (D-Eldorado Springs), who serves on the Natural Resources Committee but didn’t sponsor the bill, issued a press release welcoming the U.S. Forest Service’s decision to cease water rights takeovers. Udall said it will ensure Colorado’s ski industry can continue to thrive. He helped broker the negotiation after working with the U.S. Department of Agriculture, which houses the Forest Service…

But conservation groups worry ski areas’ retention of water rights will have negative consequences for streams and rivers. They said the proposed legislation puts private interests above the federal government’s responsibility to protect the environment.

“While House Resolution 1389’s stated intent (to help resolve a narrow conflict over water rights between the U.S. Forest Service and Colorado’s ski industry) may be legitimate, the bill is written very broadly and will have serious implications for water management across the country,” American Rivers wrote in a one-page document urging opposition to the bill…

On Wednesday, both the the U.S. Forest Service and the Interior Department issued testimony against the bill. Additionally, American Whitewater, the Sierra Club, the Natural Resources Defense Council, Earthjustice and Defenders of Wildlife, and a list of other watershed and river protection organizations are now opposing the bill.

A letter signed by 39 such organizations and submitted to the House Natural Resources Committee on Wednesday stated the bill could “prevent federal agencies from requiring protections for fish and other in-stream resources” and that, if passed, “agencies could be unable to implement reasonable requirements intended to keep water in rivers.”

On Monday, Corbin said Skico’s interest in the bill is confined to protecting water rights held by ski areas, including the four mountains operated by Skico, which together use 200 to 250 million gallons of water each winter for snowmaking.

He said American Rivers’ opposition to the bill has not altered Skico’s support of it.

“We don’t share their apprehension,” said Corbin, after reviewing materials from American Rivers expressing its opposition to the bill. “I understand their concerns, but I think they are probably overreacting.”[…]

The Forest Service released testimony Wednesday in advance of Thursday’s markup session for the bill. The agency said it doesn’t think HR 3189 is necessary, as it is working on a new version of its rule concerning water rights that will “address the concerns associated with the previous ski area water rights clause.”

“We believe these changes will provide assurances to the public and communities that depend on economic activities from ski areas that they will continue to provide recreation opportunities,” the Forest Service stated. “Further, we believe that these objectives can be met without requiring the transfer of privately owned water rights to the government.”

The written testimony from the Forest Service further states “it is not in our interest or policy to take private water rights. Our interest is in sustaining skiing as a recreation opportunity on National Forest System lands now and in the future.”

The Forest Service also raises concerns about its ability to effectively transfer grazing permits if the bill is passed as is.

The Interior Department, which includes the BLM, also released testimony on Wednesday, stating that “the legislation is overly broad and could have numerous unintended consequences.”

The National Ski Areas Association welcomed the Forest Service’s conciliatory language regarding the issue of ski area water rights, but still wants to see the Water Rights Protection Act passed.

“HR 3189 would not hinder the agency’s new approach to water policy,” said Geraldine Link, the director of public policy for the NSAA, in an email. “The new (Forest Service) policy is expected to require ski areas to offer an option to purchase water rights at fair market value to the successor owner of a ski area. (And) the bill prohibits a forced transfer of property to the US.”

Groups such as the National Cattlemen’s Beef Association and the Public Lands Council also support HR 3189, and view it as a way to protect their industry’s water rights…

American Rivers says the hydropower industry and “big western agriculture” are driving the bill, ostensibly written to protect the ski industry, in an effort to “handcuff” the Interior and Agricultural departments and “prevent them from protecting rivers and public lands,” according to a memo on the bill.

Matt Rice, the director of conservation in Colorado for American Rivers, said the group’s opposition to HR 3189 is based on language in the bill that would prohibit “impairment of any water right” by federal agencies under the jurisdiction of either the Interior or Agriculture departments.

Rice said such agencies sometimes require mitigation for hydropower projects that are ultimately licensed by the Federal Energy Regulatory Commission, or FERC. The mitigation, for example, might require that hydropower developers leave some water in a river or in a fish passage structure.

Such a requirement, or mandate, from FERC or an associated federal or state agency, could be considered an “impairment” of a water right by the hydropower industry, according to Rice.

U.S. Sen. Mark Udall of Colorado said Wednesday that he welcomed the U.S. Forest Service’s stated intention to not pursue the transfer of water rights from ski areas in exchange for permits to use public lands. Forest Service Chief Tom Tidwell issued the statement to the U.S. House Natural Resources Committee as a result of a compromise that Udall helped to broker…

“We believe that these changes will provide assurances to the public and communities that depend on economic activities from ski areas that they will continue to provide recreation opportunities,” Tidwell said in the Forest Service statement. “We believe that these objectives can be met without requiring the transfer of privately owned water rights to the government.” [ed. emphasis mine]

Udall, who serves on the U.S. Senate Energy and Natural Resources Committee, said the agreement “ensures Colorado’s job-creating ski industry and outdoor recreation businesses can continue to thrive, while protecting the long term availability of activities such as skiing on public land.”

“The Forest Service’s statement on these water rights is a victory for our state and our resort communities that depend on outdoor recreation,” he said…

The Garfield County Board of Commissioners and Associated Governments of Northwest Colorado have both lent their support to the Tipton bill, not only because of the potential impacts on ski areas but on agriculture and energy development in the region.

Eagle County’s two U.S. congressmen successfully snuffed a Forest Service move to take water rights without paying for them. Jared Polis and Scott Tipton have been battling a U.S. Forest Service policy that would force ski areas and other stakeholders to turn over the private water rights before the Forest Service would renew their permit to do business…

“While I welcome the indication of the Forest Service that there may be a change of direction from the previous ski area water clause, we need to ensure that all water users are protected from uncompensated federal takings in the long term, not just for one group of water users, in one region, for a limited time,” Tipton said.

Lawmakers are going ahead with a bipartisan bill to protect water rights, Tipton said. HR 3189 is before the House Natural Resources committee this morning.

The feds have already done it to the owners of the Powderhorn ski area on Western Colorado’s Grand Mesa.

Vail local Andy Daly is part of the group that bought Powderhorn.

Vail Resorts would have had to deal with the Forest Service policy as it renews its operating permit for Breckenridge. The feds have already done it to California’s Alpine Meadows and Washington’s Stevens Pass ski areas…

The reversal came in a statement Wednesday delivered to the Senate Energy and Natural Resources Committee.

“We will be proposing changes to the ski area water clause that address the concerns associated with the previous ski area water rights clause,” Forest Service chief Tom Tidwell said in the statement. “We believe that these changes will provide assurances to the public and communities that depend on economic activities from ski areas that they will continue to provide recreation opportunities. Further, we believe that these objectives can be met without requiring the transfer of privately owned water rights to the government.”

If you are like me, these football afternoons are best when you have the text of a water bill winding through Congress to read. Click here to read US Senator John Barrasso’s companion bill to US Representative Scott Tipton’s bill (H.R. 3189).

In speaking of his legislative efforts, Tipton said he was especially proud of a paragraph-long bill to protect water rights in Colorado. The legislation, supported by Republicans and Democrats, would prevent the federal taking of private water rights protected by Colorado water law. Tipton explained that the action was in response to a move by the U.S. Forest Service to require ski areas and ranchers dealing with federal lands to sign over their water rights.

“In Colorado we would call that a taking with no compensation,” Tipton said. “What this bill will do … We are going to make sure we are protecting Coloradoans’ private property rights and state law from federal takings.”

Rep. Scott Tipton’s legislation to restrict the federal government’s ability to acquire private water rights when leasing federal land has gained a Senate sponsor. Sen. John Barrasso, R-Wyoming, is taking up the measure in the Senate, Tipton’s office said Friday.

Tipton, the Republican who represents Pueblo and the 3rd Congressional District, said the Interior Department and other agencies have been requiring people to transfer private water rights to the government as part of federal land-use permits.

“Federal attempts to undermine the long-held state water law that protects the many uses vital to Western states are creating uncertainty and jeopardizing the livelihoods of communities, individuals and businesses responsible for thousands of jobs,” he said.

Barrasso’s statement said, “The (Obama) administration is holding public land-use permits hostage in an attempt to acquire private water rights. Once again, Washington is attempting to take over Western water rights through a federal water power grab.”

The legislation prevents the federal government from requiring the transfer of private water rights as part of a land-use permit; blocks the Interior Department from imposing other conditions on a permit that would require the transfer of water rights; and says the federal government will defer to state water law.

The bill, if passed, would prohibit the U.S. Forest Service and BLM from conditioning permits on the transfer or relinquishment of privately held water rights, or requiring water users to apply for a water right in the name of the U.S. government, instead of the purchaser, as a condition of the permit approval.

In doing so, “Federal land management agencies are using coercion to acquire private water rights,” according to a resolution recently passed by the governing board of Associated Governments of Northwest Colorado (AGNC).

“These and related actions constitute a federal taking of private property without just compensation,” the AGNC resolution states.

Garfield County Commissioner Mike Samson said during Monday’s regular commissioners meeting that it’s important for the county, as an AGNC member, to lend its individual support to the bill also…

According to the AGNC resolution, the practice of asking permittees to give up water rights violates state water law, and, “these actions have already had a negative impact on local ski businesses, which are important contributors to our regional economy.”

Municipal, agricultural and energy-related operations that have water storage facilities similar to ski resorts could also be negatively impacted, it said.

Tipton’s bill “would protect communities, businesses, family farms and other stakeholders in northwest Colorado that rely on privately held water rights from having these property rights taken by an agency of the federal government,” the resolution concludes.

Here’s an update for H.R. 3189 from Chris Woodka writing for The Pueblo Chieftain. The bill is a result of new permitting requirements currently being litigated in a lawsuit between the NSAA and USFS:

A bill to protect ski area water rights from federal water claims is advancing in Congress. The bill, HR3189, is sponsored by Rep. Scott Tipton, R-Colo., who is alarmed at federal encroachment on water rights in Western states. Tipton questioned witnesses in House Natural Resources Water and Power Subcommittee hearings last week.

The legislation is cosponsored by Rep. Jared Polis, D-Colo., and has received strong support from a broad coalition of local, state and national interests concerned with recent federal attempts to tie up privately held water rights.

“Recent federal attempts to manipulate the federal permit, lease and land management process to circumvent long-established state water law and hijack privately held water rights have sounded the alarm for all non-federal water users that rely on these water rights for their livelihood, and have already hurt stakeholders in Colorado and in other Western states,” Tipton said.

The U.S. Forest Service is attempting to require the transfer of privately held water rights to the federal government as a permit condition on National Forest System lands. There is no compensation for the transfer of these privately held rights despite the fact that many stakeholders have invested millions of their own capital in developing them, Tipton said. During the hearing, witnesses from Colorado and Utah testified on the need for legislation to protect privately held water rights from federal takings.

The Forest Service permit condition already has hurt a number of stakeholders in Colorado including the Powderhorn Ski Area in Grand Junction and the Breckenridge Ski Resort.

The state Legislature passed a resolution in April opposing the Forest Service requirement to tie up water rights in land leases for ski areas.

Congress hasn’t delegated authority to the Forest Service to seize private water rights, a Boulder water attorney told a congressional subcommittee Thursday. Glenn Porzak, who represents the National Ski Areas Association and Colorado water agencies, said a Forest Service water-rights policy cast a shadow on the water rights owned by ski areas and other public lands users. The policy required ski areas to surrender state water rights as a condition of obtaining federal operating permits.

Such a policy “creates great uncertainty and great uncertainty inhibits investment,” Porzak said. “That speaks to the urgency of Congress acting on behalf of private water rights.”

Porzak spoke at a hearing of a House Resources subcommittee, which was considering the Water Rights Protection Act by U.S. Reps. Scott Tipton, R-Colo., and Jared Polis, D-Colo. The measure, H.R. 3189, would prohibit federal agencies from demanding water rights through the use of permits, leases, and other land-management arrangements.

Porzak and Tipton said its important to move forward because a congressional task force concluded in 1997 that Forest Service efforts to “gain control over water rights are invalid because they exceed the Forest Service’s authority” and would result in unconstitutional takings of private property, Porzak said in his testimony.

No Forest Service officials attended the hearing, in part because of the federal shutdown. Subcommittee Chairman Tom McClintock, R-Calif., said also that Forest Service officials had notified him before the shutdown that they were reconsidering the policy and wouldn’t attend the hearing.

A federal judge found last year that the Forest Service had failed to follow public-review and comment guidelines and temporarily nullified the policy.

The policy was first used when the new owners of Powderhorn Mountain Resort near Grand Junction were required to surrender water rights to obtain their permit to operate in the Grand Mesa National Forest.

Differences over the water-rights policy have caused problems between ski areas and the Forest Service, which typically work closely together, Porzak said.

“It’s clear on this issue a wedge has been driven” between ski areas and the Forest Service, Porzak said.

The two biggest ski industry trade associations are joining forces to leverage their lobbying clout with the federal government. In late September, board members from SnowSports Industries America and the National Ski Areas Association teamed up in Washington, D.C. to meet with lawmakers — and also to discuss how to grow participation in snow sports.

“Getting all of us to focus on the issue and share best practices is the best way to move the needle for the industry. The resorts and the equipment providers are symbiotically linked,” said Stephen Kircher of Boyne Resorts and the NSAA board. We agreed that we need to set our goals higher for conversion, and that we need to rely on data to set these goals.”

The meetings on Capitol Hill with Members of Congress and their key staff members focusing on five main issues: Consumer Product Safety Improvement Act, Miscellaneous Tarriff Bill, TSA Policy for Avalanche Air Bag Canisters, Water Rights for Land Resorts and Immigration and Visas…

Water Rights for Land Resorts
Last year, NSAA successfully challenged in federal court a USFS water policy that would require ski areas to turn over ownership of valuable water rights to the U.S. without compensation. The policy also places restrictions on the transfer of water rights that originate off the National Forest System lands, reducing their value and hindering a ski area’s ability to transfer or sell such water rights in the future. These clauses substantially impair the value of these ski area assets and hinder a ski area’s ability to obtain access to capital for growth and expansion in the future by lowering the valuation of the ski area’s assets.

Tipton’s bill, which was introduced in Congress on Sept. 26 and has the support of representatives Jared Polis (D-Colo.), Rob Bishop (R-Utah) and Tom McClintock (R-Calif.) as co-sponsors, comes as the U.S. Forest Service works to update a clause on its ski area special permits that would tie water rights to the land ski areas are on.

According to Tipton’s office, the Water Rights Protection Act would protect communities, businesses, recreation opportunities, farmers and ranchers as well as other individuals that rely on privately held water rights for their livelihood from federal takings. It would do so by prohibiting federal agencies from confiscating water rights through the use of permits, leases, and other land management arrangements.

“Long-held state water law protects the many uses vital to Colorado and Western States – from recreation to irrigation, domestic use and environmental protection,” Tipton stated in a press release. “Unfortunately, all of this is being undermined by federal intrusion that creates uncertainty and jeopardizes the livelihoods of communities, individuals, and businesses responsible for thousands of jobs. To undermine this system is to create risk and uncertainty for all Western water users.

“Our bill will restore needed certainty by ensuring that privately held water rights will be upheld and protect users from federal takings,” he added.

The U.S. Forest Service currently has a policy to keep water rights with the land when it issues permits for ski areas and codified that clause on ski area special permits in 2011 and 2012. However, the U.S. District Court, in National Ski Areas Association, Inc. v. United States Forest Service, ruled that the federal agency must vacate its 2012 Forest Service Directive on ski area water rights. The judge overseeing the case declined to rule on the substance of the Forest Service directive, but determined the clauses were a legislative rather than an interpretive rule, which means that the agency is required to provide public notice and comment before issuing a final clause.

A proposed clause tying water rights to special use permits has not yet been issued by the U.S. Forest Service for comment.

For Polis, who represents Colorado’s Second Congressional District, the inability for ski areas to own water rights for their snowmaking capabilities adds uncertainty to the future of their business and that’s why he co-sponsored the bill.

“Ski areas are in the best position to decide what water rights they need for their future operations and make a significant investment in water rights,” Polis said on Monday. Vail Breckenridge, Keystone, Winter park, Loveland, Eldora, Arapahoe Basin, and Copper Mountain are all located in Polis’ Second Congressional District. “If these businesses cannot own the water they purchase, they are forced to operate in an uncertain climate that impedes their ability to raise capital, hinders long-term planning, and reduces investments in future projects. Concern about ski area water rights being sold or moved is misguided. Ski areas have already offered to provide successor owners with an option to purchase sufficient water if that area were to be sold.”

Scott Tipton and Jared Polis are battling a U.S. Forest Service policy that would force ski areas and other stakeholders to turn over the private water rights that ski areas need to operate. The Forest Service is requiring it before they’ll renew the permits that ski areas need to do business.

Tipton, a Western Slope Republican, and Polis, a Boulder Democrat, introduced the Water Rights Protection Act. Their congressional districts split the valley: Polis in the east and Tipton in the west.

Polis said Colorado’s 2nd Congressional District is one of the world’s most desirable ski destinations. It’s home to Vail, Breckenridge, Keystone, Winter Park, Loveland, Eldora, Arapahoe Basin and Copper Mountain. The rest of Colorado’s ski areas are in Tipton’s 3rd Congressional District.

The federal government has already done something similar to one Colorado ski area, Powderhorn on Western Colorado’s Grand Mesa, and may have Breckenridge in the crosshairs.

Vail local Andy Daly is part of the group that bought Powderhorn.

“We were forced to turn over all the water rights for all the water that originates on the forest land,” Daly said. “We’re waiting for a new water policy that hopefully will be negotiated between water users and the U.S. Forest Service.”

The feds have done the same thing to California’s Alpine Meadows and Washington’s Stevens Pass…

“That’s not the system we use out here in the West,” said Geraldine Link, the National Ski Areas Association’s director of public policy. “We were pleased to see a bipartisan bill. To us, this is about one of the most crucial issues in the West — water.”

The NSAA filed a lawsuit in federal court.

No federal statute gives the Forest Service the authority for the water, and the U.S. Supreme Court has ruled repeatedly that water is regulated by the states, Link said.

“If the Forest Service wants to own water rights, they need to get in line like everyone else and acquire them under the requirements of state law,” Link said.

The Forest Service says the policy is designed to keep ski areas from selling water rights for other purposes. Tipton said that has never happened, pointing out that ski areas use most of their water for snowmaking.

Polis said concern about ski area water rights being sold or moved is misguided. Ski areas have already offered to provide successor owners with an option to purchase sufficient water if that area were to be sold…

A federal judge ordered the Forest Service to take public comment on policy changes. The new Forest Service policy is expected in a month or so, Link said. After that, the public will have 60 days to comment.

A measure that would prohibit the U.S. Forest Service from requiring ski areas to surrender water rights for operating permits by U.S. Rep. Scott Tipton, R-Colo., garnered support from U.S. Rep. Jared Polis, a Boulder Democrat. Tipton, whose district includes most of the Western Slope and several ski areas, introduced the Water Rights Protection Act with U.S. Rep. Mark Amodei, R-Nev., in response to the requirement that was first employed with the new ownership of Powderhorn Mountain Resort near Grand Junction in 2011. Tipton hinted earlier this summer that he was preparing legislation aimed at codifying Western water rights.

The Water Rights Protection Act, or HR3189, will extend beyond ski area permits, Tipton’s office said, noting it will apply to all water rights’ holders whose rights are conferred under state law, federal or state adjudication, decrees, and interstate water compacts. The bill also would apply to conditions for transfer or relinquishment, and for any restriction or impairment of water rights made for the benefit of the federal government, Tipton’s office said.

In the Powderhorn case, new ownership was required to sign over water rights issued under state law in order to obtain the Forest Service permit to operate the resort.

The National Ski Areas Association based in Lakewood filed suit and a federal judge ordered the Forest Service to comply with federal law requiring public comment on such significant changes in policy. No new policy has been made public.

The Forest Service said the policy was necessary to prevent ski areas from selling off their water rights for other purposes, a practice that Tipton noted in a statement on the bill had never happened. Ski areas use their water rights for snowmaking.

The measure would preserve state water law that is “being undermined by federal intrusion that creates uncertainty and jeopardizes the livelihoods of communities, individuals, and businesses responsible for thousands of jobs,” Tipton said in a statement. “To undermine this system is to create risk and uncertainty for all Western water users.”

Western Slope advocacy organization Club 20 supports Tipton’s efforts. “Club 20 policy does not support the Forest Service ski area water rights clause and supports Congressman Tipton’s efforts to keep the (Forest Service) from requiring that ski areas turn their water rights over to the federal government,” Club 20 Executive Director Bonnie Peterson wrote in an email. “Should this practice be allowed, Club 20 members are concerned that the federal government would extend its reach to take ownership of water associated with other uses, like grazing and municipal water rights from those that have legitimately developed and own those rights.

“Water is a state issue and state water laws currently protect the use of those developed water rights adequately,” Peterson wrote.

Legislation recognizing the water laws of Colorado and other western states could discourage federal efforts to claim water, said U.S. Rep. Scott Tipton, R-Colo. Tipton will introduce legislation aimed at codifying western water law to deter federal pre-emption of water rights, he said. “The West is under assault at this time,” Tipton said Saturday at the fall meeting of Club 20, the Western Slope advocacy organization.

The most recent battleground over water is a demand that ski areas surrender water rights to the U.S. Forest Service as a condition of obtaining their permits to operate on lands administered by the Forest Service.

Forest Service officials said the requirement was necessary to assure the continued use of the water for skiing. Many ski areas use their water rights to make snow.

Ski areas, and others, sued the Forest Service and gained a temporary victory when a federal judge ruled that the agency hadn’t followed federal procedures when it applied the directive in 2011 to the new owners of Powderhorn Mountain Resort near Grand Junction. The new owners were required to agree to the directive before they could open the mountain that ski season. The National Ski Areas Association said the demand amounted to a federal taking of private property.

Tipton said he will unveil the legislation, which will amount to a simple, two-page bill, in September.

Rep. Scott Tipton (CO-3) spearheaded a hearing in the House Natural Resources Subcommittee on Water and Power, [April 25, 2013], to draw attention to recent federal attempts to circumvent long-established state water law in the Western United States in order to hijack privately held water rights. With Colorado jobs and the economic health of rural communities at stake, Tipton has led the charge in Congress to protect privately held water rights in Colorado and other Western states.

In her testimony, Geraldine Link of the National Ski Areas Association, laid out what is at stake for Colorado’s economy should the federal government succeed in taking away privately held water rights that ski areas, communities and other businesses rely on for their livelihoods.

“Collectively, ski areas have invested hundreds of millions of dollars on water rights to support and enhance their operations…Water is crucial to future growth of ski areas and that future growth directly impacts the rural economies associated with ski areas. Ski areas are major employers in rural economies, employing 160,000 people, and help drive job creation in rural and mountain economies,” Link said. “US Forest Service (USFS) water clauses that demand transfer of ownership of ski area water rights to the United States substantially impair the value of these ski area assets…These types of water clauses provide a disincentive for ski areas to acquire more water rights in the future… If ski areas stop investing in water rights for the future, the outlook for the rural economies dependent on them would be bleak.”

The USFS is moving forward to implement a permit condition to require the transfer of privately held water rights to the federal government, without any compensation, as a permit condition on National Forest System lands. Last year, the National Ski Areas Association filed suit against the Forest Service to block implementation of the permit directive. In December 2012, the United States District Court for the District of Colorado vacated the 2012 USFS directive, and ordered the agency to pay $125,000 to cover the Ski Area Association’s legal fees.

In January 2013, the USFS announced that it intended to initiate a public comment process as it once again ramps up efforts to implement a directive that would require the transfer of privately held water rights to the federal government as a permit condition on National Forest System lands. The USFS justifies this policy as necessary in order to ensure that these water rights are not improperly sold off and used for other purposes, and to ensure that water is available for snow making and grazing.

Tipton asked Link if there has been a case of these water rights being sold or used improperly by the ski industry.

Link replied that this is a “made up issue,” and that there has been no such case. As such, she said that it’s believed that the USFS intends to use the water for other purposes, including endangered species protection, rather than for continued snowmaking and grazing as the agency has stated.

“The Agency’s most recent explanation for its policy which is, ‘saving the ski areas and the ski communities,’ is really just a cover for a longstanding objective of getting more water for the woods, for these other purposes,” Link said. “If the Agency were truly aiming to keep the water with the ski areas, why under its 2012 policy for example, which was struck down in federal court, was the Forest Service not willing to guarantee that the water would actually stay with the ski areas?”

The implications of the USFS water grab extend past the ski area association and into the heart of rural America where farmers and ranchers rely on privately held and developed water rights to secure loans, as well as irrigate crops and livestock.

“This policy isn’t limited to ski areas. The Forest Service has also been implementing a similar requirement for grazing permits in several western states,” Tipton said. “Many of the ranchers I represent can’t afford drawn-out and costly legal battles with the Forest Service to protect what is rightfully theirs under state law.”

In addition to seeking the relinquishment of water rights through ski area permits, the USFS has begun implementing back door ways to control private water rights.

In his written testimony, Gary Derck, CEO of Durango Mountain Resort, told the committee that although the resort has been a good steward of the environment and its water rights, the Forest Service has repeatedly denied access to develop those water rights, jeopardizing those privately held rights under state law.

“A few years ago, the policies of the USFS took a distinct and concerning change of course. Local USFS officials began telling us that they were no longer in charge of making decisions relative to water rights and water access … and that direction/decisions on these matters was now coming from ‘higher up in the Forest Service,’” wrote Derck. “Apart from the obvious “taking” issue of our private water rights, we are concerned that it appears that our local USFS representatives have been directed to “stand down” and stop working collaboratively with us to help us with what we need to continue to make snow, operate/improve our business, maintain/grow our employment, and provide the recreational activities and services we currently provide for the Four Corners region and the town of Durango.”

In response to Derck’s testimony, Tipton told the Committee, “This is nefarious and coercive, and it has to stop.”

To add to the list of federal threats to state water law, the Department of Interior recently issued Secretarial Order 3321 establishing the National Blueways System. This is a “source to mouth, watershed-wide” federal program about which little is known, and which has raised the fears of many local water conservation districts who are already doing an outstanding job of managing precious water supplies.

In February, Tipton joined 22 of his colleagues in urging Secretary Salazar to withdraw the Blueways Order, writing, “Water is the lifeblood of our communities, and it should be managed for the benefit of the community in a transparent fashion…Any designation by a federal agency that directly or indirectly attempts to manage the non-navigable headwaters of many of our nation’s rivers would be a usurpation of state authority.”

The Administration tuned-out this request and included funding in its FY2014 budget to expand the Blueways Program.

Russell Boardman, Supervisor of the Shoshone Conservation District in Frannie, Wyoming testified on the Blueways Program during the hearing.

“I would ask how a designation that requires no public notice, no comment opportunity and was created without coordination or consultation with affected landowners, local governments or states, could result in increased coordination…our district and all others in Wyoming are already coordinating with private, state and local entities and we are already promoting best practices and we are already sharing information and resources,” Boardman said. “We fail to see how a Blueways designation will enhance this. In fact, we are concerned in Wyoming that this designation will hamper these efforts by creating fear, confusion and controversy. Real conservation occurs at the grassroots level. If there is a commitment to grassroots conservation then local efforts like the ones implemented by our conservation district should be supported, rather than trumped by a Secretarial edict.”

“The bottom line is this: we continue to see a trend of federal intrusion into state water law which protects all of the uses we hold dear, from recreation to irrigation, domestic use and environmental protection. To undermine this system is to create risk and uncertainty for all Western water users,” Tipton said. “This isn’t a political battle, it’s a regional one. Water is the lifeblood of the West.”

The hearing, entitled “Federal Impediments to Water Rights, Job Creation and Recreation: A Local Perspective,” did not include any witnesses from the U.S. Forest Service…

In Colorado, state law says water rights are a property right. Owners can use or sell the rights as they please, provided a water court approves of the water’s uses, the Herald previously reported.

Tipton, R-Cortez, grilled Agriculture Secretary Tom Vilsack in a March hearing about the topic, saying the struck-down directive was an attempt to circumvent state law. “The focus here is making sure that we use our forests … in the most appropriate way,” Vilsack said then. “We need to balance that with the interests of those who need the water for economic purposes,” he added, citing the ski industry.

State legislators rebelled against the practice this year and passed a resolution condemning the Forest Service for its policy.

But the Forest Service managed to scuttle a much more substantive bill, which would have changed Colorado water law to prohibit the federal government from demanding water rights in return for issuing land-use permits.

Undersecretary of Agriculture Harris Sherman, who oversees the Forest Service, personally called several state lawmakers and asked them to kill the bill. It has been sitting idle on the House calendar for two weeks, and its sponsor, Rep. Jerry Sonnenberg, R-Sterling, said he expects it to die when the yearly session ends in two weeks.

Sonnenberg has argued that the Forest Service policy takes direct aim at Colorado’s long-standing principle that water rights allow the owner to use or sell the water for any purpose anywhere in the state, as long as a court approves.

“Our new approach assumes that all previous water clauses are no longer in effect, null and void, and unenforceable. It would result in a consistent water policy across the board going forward,” said NSAA policy director Geraldine Link. The ski industry comments came as the Forest Service held a series of hearings around the West in the early stages of developing a new water rights clause that eventually will become part of agency permits for businesses operating on public lands…

For the ski industry, its partially a financial issue. Resorts have spent millions of dollars developing and perfecting water rights under state law, and to the NSAA, any permit language requiring a transfer of those rights is unacceptable and illegal.
A required transfer would impair the value of the resorts’ investments and could hinder their ability to finance capital improvements, the NSAA wrote.

The U.S. Forest Service will pay $125,000 to the National Ski Area Association for its attorney fees in a case the association brought to stop the agency from demanding new water rights. U.S. District Judge William Martinez approved an agreement between the agency and association after the ski areas sought $163,000 in attorney fees for the case, according to court papers.

The agreement to pay attorney fees drew a scathing response from U.S. Rep. Scott Tipton, R-Colo., who said that $125,000 is “a lot of money, especially when it’s at taxpayer expense and at a time when the Forest Service should be dedicating as many resources as possible to addressing the hazardous conditions of our forests to prevent wildfire.”

The ski areas sought attorney’s fees under a federal law that requires the Forest Service to pay attorney’s fees if a judge “concludes the Forest Service’s position was not substantially justified,” Geraldine Link, the attorney for the National Ski Area Association, said in an email.

The association filed suit last year after the Forest Service required the new ownership at Powderhorn Mountain Resort to surrender new water rights to the agency in exchange for a permit to operate the ski area on national forest lands.

Although the agreement includes a provision in which the Forest Service admits no allegations, Link said the deal makes it clear “that taxpayer dollars are being used in defense of an unlawful federal water grab.”

Martinez rejected the ski-area water rights directive after finding that the Forest Service had failed to meet public-participation requirements in drafting it.

If the Forest Service moves forward on the directive, “the costs will be even greater to the businesses, farmers, ranchers and communities that rely on these water rights for their livelihoods,” Tipton said.

The Forest Service conducted the first of several focus-group open houses nationwide on Tuesday in Denver. Officials anticipate publishing a draft directive later this year in the Federal Register, then conducting a public-comment process before adopting a new directive.

Concern about the consequences of such a policy extends beyond the ski industry. “We’re very concerned about the implications of such a clause targeted to one industry because if it’s successful and because it’s outside Colorado water law, could the U.S. government demand similar rights of agriculture, municipal water users, anyone who develops a water right that originates on public land?” said Bonnie Petersen, executive director of Club 20, a Western Slope advocacy organization.

The Forest Service on this week launched the first of several public meetings and forums as it outlines a contentious push to secure water rights used by ski areas on public land. “There is a fundamental difference of opinion that will be hard to overcome,” said Jim Pena, the Forest Service’s acting deputy chief, acknowledging ski area opposition to the agency plan to revamp permits with new regulations addressing the ownership of water rights.

The public meeting on Tuesday was sparsely attended at the Forest Service headquarters in Lakewood. Ski area officials huddled together while leading agency officials — the landlords of 122 U.S. ski areas, including 22 in Colorado — stood ready to answer questions that didn’t come.

It’s a complex issue, as is any that deals with Colorado’s byzantine water right laws. And probably not something that stirs the public. But for ski areas, the Forest Service push to secure water rights owned by resorts operating on public land is a critical issue.

The National Ski Areas Association, which successfully sued to overturn early versions of the water clause, met with the agency before the public hearing and offered two options that would deflect the Forest Service need to take ownership of water rights used on public land. (That invite-only forum is one of several the agency is holding with resort communities, ranchers, conservation groups and other stakeholders as it scripts the new ski area permit water clause.)

The association’s options would require ski areas to prove sufficient water is available for every new project and any ski area sale would include options to sell ski-operation water rights to the buyer, the local community or the Forest Service. “We are excited about having ideas and offering something new,” said the association’s public policy director Geraldine Link, who led the industry’s lawsuit to overturn the water clause. “We are staying let’s start over. We think there is a way to address Forest Service concerns without the seizure of assets.”[…]

Pena said federal ownership may not be the only answer, hence the public meetings. The agency owns roughly 21 percent of the country’s ski area water rights, shares ownership of 4 percent and the remaining 75 percent is owned by ski area operators. Regulations that require water rights remain connected to public lands would prevent ski area operators from selling water rights as a commodity that eventually may be worth more than skiing.
“Without long-term assurances for water, we feel we could be the public’s interest at risk,” he said. “The whole idea of sustainability is about preserving resources for future generations. We are seeing more of the ski industry being managed by corporate interests. They are no longer mom-and-pop operations. We have to be prepared for people making different business decisions than what is best for the public.”[…]

Davey Pitcher, the owner of southern Colorado’s Wolf Creek ski area, allowed the Forest Service to share ownership of his water rights when he renewed his permit in 2000.
“We don’t see a problem with,” Pitcher said, noting how the agency allows intensive ski infrastructure on public land, like trails and chairlifts, so it makes sense for the Forest Service to want to protect the water needed for skiing. “We see it as a reasonable request.”

The U.S. Forest Service is turning to focus groups to help it deal with a water-rights directive that landed the agency a slapdown in federal court. Forest Service officials are to conduct focus-group discussions Tuesday about the clause, which they hope to publish in August and then begin the process of collecting public comment in preparation for adoption by February.

The process being undertaken is “bizarre beyond belief,” said Glenn Porzak, a Colorado water lawyer who represents the National Ski Area Association, which took the Forest Service to court last year to stop enforcement of the directive. “I’ve never seen anything like this.”

It’s not a new approach, Forest Service spokeswoman Tiffany Holloway said. “Listening group sessions are just one of the ways that we engage the public in our decision-making,” she said.

The Forest Service was rebuffed by federal court in Denver when it demanded that the new ownership of Powderhorn Mountain Resort turn over new water rights in order to obtain a lease to operate the ski area in the Grand Mesa National Forest.

Powderhorn was the first resort in the nation to be subject to the directive. The court later found that the Forest Service had fallen short of public-involvement requirements in implementing the directive. Ski resorts, environmental organizations, community organizations and representatives of natural-resource industries are invited, each to their own listening session, the Forest Service said.

Ski areas are to be represented at a meeting Tuesday in Denver. Other meetings are scheduled in Salt Lake City; Lake Tahoe, Nev.; and Washington, D.C. “The sessions will focus primarily on the principal rationale underlying the ski area water rights clause: ensuring that sufficient water remains available to support ski areas and dependent communities,” Leslie A. Weldon, deputy chief of the National Forest system, wrote to participants. Officials have said the policy is needed to prevent ski areas from selling water rights to other users should they have more value than for snowmaking.

Since the policy was invoked with Powderhorn, municipal water providers, grazers and other industries and organizations that use federal lands have been told they could be subject to the same requirements. “We’re disappointed we haven’t been invited to participate” in the listening session, said Mark Hermundstad, the Grand Junction water attorney who represents the Ute Water Conservancy District. Ute Water filed an amicus brief in the Powderhorn case that “raised serious issues about how the Forest Service rules could be applied,” but won’t be allowed to direct them to the Forest Service listening process, Hermundstad said.

The Forest Service has “kind of awakened a sleeping dog” by extending the policy beyond ski areas, Porzak said. Municipalities and other users “are now focused on this issue,” he said. While the sessions are open to the public, “The intent is to have people of like interests/expertise to be able to have conversations with people of similar interests,” Holloway said. “We will not turn people away from any meeting but will ask that they allow the invitees to have a free conversation.”

U.S. Rep. Scott Tipton, R-Colo., whose 3rd Congressional District includes several ski areas, grazers, municipal water suppliers and others, said he was disappointed the Forest Service was conducting meetings far from where the effects of the policy will be most heavily felt. “When are they going to talk to the people who stand to be affected by this effort to trample all over state water law?” Tipton said via a spokesman.

Now, the agency will hold a series of public meetings, starting April 16 in Denver, to take input from the public and key stakeholders. Additional meetings are set for Salt Lake City on April 17, and Lake Tahoe, Calif., on April 18.

Forest Service leaders and technical experts from Washington, D.C., as well as from local and regional offices will be on-hand to take public comments and provide additional information on the water rights issue.

At issue is very specific language in ski area and other special-use permits that establishes the ownership and future uses of water that flows off public lands. The key for the Forest Service is to ensure that the water rights from water that comes from national forest system lands continue to stay with the permitted special use.

The ski industry and the agency have been at odds over the water rights directive for several years but say they are committed to a collaborative approach based on a long history of partnership. “Some resorts have water rights in their name, some are held in the name of the U.S. Going forward, we need a more cogent way of addressing this,” Rocky Mountain Regional Forester Daniel Jiron said in a January interview with Summit Voice.

“Our long-term policy objective is to make sure that ski areas and communities can depend on that water … The Forest Service must provide the resources to do that,” Jiron said. “We support the ski industry … I believe it’s an important part of our mission. We know that the current group of ski resort owners and operators are committed to their resorts and Colorado, but we have to plan ahead decades to protect public resources,” Jiron said.

A Sen. Randy Baumgardner-sponsored water rights measure unanimously passed out of the Colorado Senate Agriculture, Livestock & Natural Resources Committee on Thursday. House Joint Resolution 13-1004 calls on the U.S. Forest Service to rescind a 2012 directive that stipulates water rights revert to the federal government upon termination of a special-use permit.

Martinez sided with the National Ski Areas Association, which was suing the Forest Service over the new water rights permit rules, ordering the agency to not enforce the terms of the new rules. Martinez remanded the issue back to the Forest Service…

The agency said it changed the permit requirements to assure that ski areas never sold water rights connected to federal land.

“It’s a monetary calculation,” Department of Justice attorney Clay Samford argued in the Nov. 15 hearing. “As the value of these rights increases, it may make economic sense for ski areas to sell some rights off.”

The NSAA argued that the agency violated the Federal Administrative Procedural Act by not soliciting public input on the new rule…

Martinez’s decision only addresses the Forest Service’s procedural deficiencies when it crafted the new water directives. He did not rule on the NSAA’s substantive claims, specifically that the agency should not condition ski permits on the transfer of water rights obtained through a state process.

The Colorado River Water Conservation District, the Eagle River Water and Sanitation District, the Ute Water Conservancy District, the Eagle Park Reservoir Company and the Clinton Ditch and Reservoir Company have joined in the lawsuit with an amicus brief that was accepted by the U.S. District Court of Colorado a few days ago, according the Colorado River District attorney Peter Fleming. The Amicus Brief doesn’t raise new issues, but reinforces the legal points already made by the National Ski Areas Association in its original and amended complaints and serves to make the court aware that the disposition of the case will stakeholders other than the ski industry, Fleming said. “If the Forest Service is allowed to extract these concessions from the ski industry, then potentially the federal government will seek to demand the same or similar constraints from municipal and other water users as most of the headwaters and water sources in the western states arise on federal lands,” the amicus brief states.

At issue is are changes the Forest Service made to the standard permits under which scores of ski resorts in the West run their businesses on publicly owned National Forest lands.

More National Ski Areas Associations coverage here. More water law coverage here.

[Boulder-based attorney Glenn Porzak] said he’s been to Washington four times in the last three months to try to work out a solution with the Forest Service and the U.S. Department of Agriculture to no avail, which is why the association filed the lawsuit against the Forest Service in federal court Monday.

“The Forest Service does not have the authority to take the ski industry water rights they’re seeking,” Porzak said. “Vail Resorts is closely monitoring this entire lawsuit and the whole issue that is being raised.”

Vail Resorts, a member of the National Ski Areas Association, has private water rights at both Vail and Beaver Creek, as well as the company’s other mountain resorts. The Forest Service’s new regulations are to take back private water rights from the resorts and tie those water rights to the land, but Porzak said the association wants the 2004 water rights clause to remain in effect.

In that clause, any on-mountain water rights acquired after 2004 have to have a joint ownership between the ski resort and the Forest Service, however the ownership of water rights obtained before 2004 would remain solely with the entity that initially obtained those rights. The off-mountain water rights — which for Vail Resorts includes off-site reservoirs such as the Eagle Park Reservoir, among others — remain in the hands of the ski resorts that obtained them under the 2004 clause, however the new regulations would change that.

There was a lot of negotiation done before the 2004 clause went into effect, Porzak said, to protect those off-site water rights. The new Forest Service rules would give those off-site water rights — rights that ski resorts have paid millions for — to the Forest Service without any compensation to the ski resorts, Porzak said.

Like this:

Here’s the release from the National Ski Areas Association (Troy Hawks):

The National Ski Areas Association (NSAA) filed a lawsuit in Federal court in the district of Colorado today against the U.S.D.A. Forest Service (USFS) to challenge a new water rights clause that results in an unconstitutional taking of property.

“We greatly value our longstanding and successful partnership with the United States Forest Service in delivering outdoor recreation experiences for millions of Americans that are unmatched in the world,” said NSAA President Michael Berry. “As always, we will continue to work positively and cooperatively with the agency to provide these opportunities on public land, but water rights are simply too critical and valuable to our operations not to defend ourselves against this outright taking of private property by the U.S. Government.”

The controversial water rights clause requires ski areas operating on Forest Service land to transfer ownership of many types of water rights to the United States government, including water rights that have been purchased with private dollars by ski areas for business operations. From NSAA’s view, requiring ski areas to transfer ownership or limit the sale of water rights without compensation is no different than the government forcing a transfer of ownership of gondolas or chairlifts, grooming machines, or snowmobiles without compensation—except for the fact that water rights are significantly more valuable than these other ski resort assets.

NSAA’s lawsuit should be a wake up call for cities and counties and other entities that have invested in the development of water rights that are in any way associated with National Forest System lands. Because of the significant percentage of water that originates on National Forest System lands, this change in policy could impact other water owners including cities and counties, owners of recreation residences, marinas and summer resorts, ranchers, mining interests and utilities.

The new water clause also poses a threat to the current system of state allocation and administration of water rights. The Forest Service acted unilaterally in changing its policy, and did not consult with states on its impacts on the state system of allocation and adjudication of water rights.

Prior to litigating the matter, NSAA urged the agency to set aside the controversial water clause and start over on a clause that was within the bounds of the law and protected all parties’ interests. NSAA was not alone in making this request, as Sen. John Barrasso (R-WY), Sen. James Risch (R-ID), Sen. Mark Udall (D-CO), Sen. Michael Bennet (D-CO), Colorado Governor John Hickenlooper (D), Colorado representatives Scott Tipton (R) and Jared Polis (D), Doc Hastings (R-WA), Chairman of the House Committee on Natural Resources, Frank Lucas (R-OK) Chairman of the House Committee on Agriculture, Mike Simpson (R-WY), Chairman of the Appropriations Subcommittee on Interior and the Environment, and Jack Kingston (R-GA), Chairman of the House Subcommittee on Agriculture, Rural Development, also requested in writing that the agency issue a moratorium on implementation of the controversial clause.

When the agency refused to withdraw the clause, NSAA was forced to go to federal court to seek judicial review and injunctive relief and protect the rights and interests of its member ski areas. Three ski areas have already been required to accept the clause, effective November 8, 2011, as a term in their special use permit in order to operate. Those ski areas include Powderhorn in Colorado, Alpine Meadows in California, and Stevens Pass in Washington.

More coverage from the Summit County Citizens Voice (Bob Berwyn). From the article:

The water rights issue surfaced publicly in November, when the National Ski Areas Association, represented by attorney Glenn Porzak, complained in Congress that the Forest Service was trying to “take” privately held water rights by revising a ski area permit condition that was adopted in 2004. Since then, the ski industry has threatened to sue the Forest Service over the new water rights clause. But Ed Ryberg, who headed the agency’s ski area program from 1992 to 2005, says it’s the other way around. According to Ryberg, the ski industry used its political connections in the Bush administration to lobby for regulatory changes that were subsequently implemented without public input or review under federal environmental laws…

According to Ryberg, the latest move by the Forest Service to revise the language merely restores the balance that existed before 2004 and ensures that water that originates on national forest lands and has been developed for ski resort use remains with the ski areas.

Click through to read the text of a letter from Ryberg to U.S. Senator Udall.

More coverage from Troy Hooper writing for the Colorado Independent. From the article:

“Frankly, litigation may be the best way forward on this issue,” Ed Ryberg wrote in a letter last week to Sen. Mark Udall, D-Colorado, commending foresters for redressing “the abuses of crony capitalism.” In his letter, Ryberg, who coordinated the Forest Service’s ski area program from 1992 until his retirement in 2005, excoriates “the ‘bad actors’ in the ski industry who welshed on their agreements with the United States, and obtained water rights, justly belonging to the American people, through fraud and deception. These are the ski areas on who’s behalf NSAA has been lobbying.”

Asked for a response, Geraldine Link, the policy director for NSAA, emailed the Colorado Independent to say “the 2011 clause … is retroactive in nature. It resurrects old, invalid and replaced clauses that are no longer in effect. It resurrects them from the past even though at this time the ski area and the water rights could very well be owned by a different entity who was not a party to the permit from 3 decades ago. The 2011 clause also applies to water that originates on private land and other non-USFS lands. Talk about shifting political winds. The ski industry is frustrated with the pendulum swinging back and forth between administrations. It is not good for business.”

Ryberg has a much different perspective but he agrees with NSAA officials on at least one point when they say they are going to sue the Forest Service: Let the dispute play out in court. “It will be advantageous to the public’s interest to get the Justice Department involved in this matter,” Ryberg wrote in his letter to Udall, on which Bennet was copied. “It will provide them an opportunity to become familiar with the facts of the matter to help them determine if criminal prosecutions should be pursued, and to expedite acquiring title to water rights that justly belong to the American people.”

More coverage from Kevin Hoffman writing for The Mountain Mail. From the article:

The industry statement says the water rights clause enacted in November last year requires ski areas operating on forest service land to transfer ownership of many types of water rights to the United States government. The clause prohibits ski areas from selling or transferring ownership of some water rights acquired on private or non-federal land. Effectively the lawsuit is based on the association claim that the clause results in an unconstitutional taking of property without compensation and is a restriction that will have a significant and adverse effect on the value of water rights…

Monarch Mountain marketing director Greg Ralph said the lawsuit will not affect the local ski area much because it doesn’t use water rights to manufacture snow.

More coverage from Jason Blevins writing for The Denver Post. From the article:

The new water-rights regulation — already employed in three new ski-area permits in California, Washington and Colorado’s Powderhorn — revises a 2004 agreement that had the Forest Service and ski- area operators sharing ownership of some water rights. In an interview in late December, the Forest Service’s acting deputy chief, Jim Pena, said the revamped clause more closely mirrors the original 1986 permitting legislation and makes sure “we don’t sever the resource from the land.” The industry, however, argues the new clause prohibits ski areas from selling and trading a valuable commodity, reduces the value of the commodity and injures balance sheets. Vail Resorts reports water rights as intangible assets valued at $18.3 million…

Former Forest Service winter sports coordinator Ed Ryberg last week sent a letter to Sen. Mark Udall, D-Colo. Ryberg said the 2004 water rights clause was a “radical change to Forest Service direction” that “was a direct result of the ski industry exploiting lax regulatory environment that characterized the Bush Administration.”[…]

Colorado attorney Glenn Porzak, who has represented several ski areas and helped negotiate the 2004 water-rights clause, sent a letter to Udall rebutting “numerous inaccuracies” in Ryberg’s letter. A major contention between the Forest Service and the ski industry is the agency’s assertion that the new water-rights clause does not impact water rights secured on private or non-federal lands. “The new clause impacts water rights on no ski area permit lands regardless of whether they are federal or private lands,” Porzak wrote in his Jan. 10 letter to Udall.

A U.S. Forest Service rule aimed at assuring that ski areas don’t sell off their water rights was welcomed by Colorado’s two senators and panned by the office for the representative whose district includes several resorts.

The Forest Service on Friday is to unveil a rule to replace one that was rejected by a federal judge who ordered the agency to start the proposal anew.

Under the proposed new rule, ski areas operating on Forest Service land would have to assure the Forest Service that the ski area would have sufficient water rights to provide for snowmaking and other essential operations even if the ski resort is sold.

The rule would not require ski areas to transfer water rights to the Forest Service. That provision in the previous rule caused the National Ski Areas Association to take the Forest Service to court, where it won a ruling that sent the agency back to the drawing board.

“This proposal balances the interests of the public, the ski areas and our natural resources by ensuring the necessary water is provided for winter recreation through our special-use permit process,” U.S. Forest Service Chief Tom Tidwell said in a statement about the rule, which is to be published in the Federal Register on Friday. “This proposed change will provide assurances to the public that they will continue to enjoy winter recreation at ski areas on national forests.”

The Friday notice will start a 60-day public-comment period on the proposed rule.

U.S. Sens. Michael Bennet and Mark Udall, both Colorado Democrats, said in separate state ments that they welcomed the proposed new rule and looked forward to reviewing it.

Udall called it “another step toward protecting our national forests and recreational opportunities on public lands.” while Bennet called for a consensus bill “based on today’s proposal that provides certainty and clarity on this issue for Colorado’s water community.”

The House already has passed a bill by U.S. Rep. Scott Tipton, R-Colo., aimed at preventing the Forest Service and other federal agencies from demanding water rights in exchange for permits on federal lands.

Tipton’s office had yet to see the proposed new rule, a spokesman said, noting that if it affects only the Forest Service, it falls short of protecting all users, including ranchers and municipalities that use federal lands and watersheds.

The previous rule was first used in 2012 when the new owners of Powderhorn Ski Resort, now Powderhorn Mountain Resort, were required to turn over water rights in order to obtain a permit to operate on the Grand Mesa National Forest, prompting the suit by the National Ski Areas Association.

The 1982 Forest Manuel requires that USFS obtain water rights for making snow and operating facilities. Concessionaires can request rights on behalf of USFS. In 2004, the policy was amended to allow concessionaires and USFS to obtain the rights jointly. But the 2004 policy has let to considerable confusion, as water was obtained from different sources from in and out of federal property and transported in different ways, USFS found. So it amended the clause in 2011 to address different types of water rights.

The 2011 directive distinguished between rights for water diverted from and used on local forest service land in the ski permit area, rights for water coming from USFS property outside the permit area, and water from outside sources. USFS amended the clause further in 2012. But the National Ski Areas Association (NSAA) sued in federal court. NSAA charged that USFS did not allow for public comment before changing the procedures, in violation of several federal statutes. U.S. District Court in Colorado agreed and vacated the 2011 and 2012 changes.

So USFS is proposing new procedures and taking public comments. It conducted four open houses and sought comments last year too. It is reproposing the ideas based on what it learned.

The kerfuffle over the the US Forest Service’s permit clause for ski areas is in the news again. US Representative Scott Tipton has introduced legislation that would prohibit the USFS’s actions. Here’s the release from Congressman Tipton’s office:

Today, Reps. Scott Tipton (R-CO) and Mark Amodei (R-NV) introduced with bipartisan support the Water Rights Protection Act (WRPA) to protect privately held water rights from federal takings and uphold longstanding state water law. Reps. Rob Bishop (R-UT), Tom McClintock (R-CA), and Jared Polis (D-CO) are original co-sponsors.

In recent years the federal government has repeatedly attempted to circumvent long-established state water law in order to hijack water rights. These efforts constitute a gross federal overreach and a violation of private property rights. The U.S. Forest Service (USFS) is currently pushing the federal government’s latest attempt to ignore state law and take private water rights, despite objections from elected officials, business owners, private property advocates and a U.S. District Court ruling.

The Water Rights Protection Act would protect communities, businesses, recreation opportunities, farmers and ranchers as well as other individuals that rely on privately held water rights for their livelihood from federal takings. It would do so by prohibiting federal agencies from confiscating water rights through the use of permits, leases, and other land management arrangements.

Most recently the USFS has attempted to implement a permit condition that requires the transfer of privately held water rights to the federal government as a permit condition on National Forest System lands. There is no compensation for the transfer of these privately held rights despite the fact that many stakeholders have invested millions of their own capital in developing the rights. Additionally, federal land management agencies are taking private water users hostage to acquire additional water supplies for the federal government by requiring water users to apply for their rights under state law in the name of the United States rather than for themselves.

This agency permit condition has already had a negative impact on a number of stakeholders including the Powderhorn Ski Area in Grand Junction and the Breckenridge Ski Resort where, despite having been excellent stewards of the environment and their water rights, the USFS has demanded the relinquishment of state granted water rights in order to continue their operations. The same nefarious tactics have been used in attempts to hijack privately held water rights associated with agricultural production in the heart of rural America where farmers and ranchers rely on these rights to secure loans, as well as irrigate crops and livestock. This federal water grab has broad implications that have begun to extend beyond recreation and the farming and ranching community, and are now threatening municipalities and other businesses.

“Long-held state water law protects the many uses vital to Colorado and Western States—from recreation to irrigation, domestic use and environmental protection. Unfortunately, all of this is being undermined by federal intrusion that creates uncertainty and jeopardizes the livelihoods of communities, individuals, and businesses responsible for thousands of jobs. To undermine this system is to create risk and uncertainty for all Western water users,” Tipton said. “Our bill will restore needed certainty by ensuring that privately held water rights will be upheld and protect users from federal takings.”

“Nothing in federal law grants federal land managers jurisdiction over Nevada’s ground water. That responsibility is one of the few states’ rights authorities remaining in Nevada and I will work all day, every day to keep it,” said Amodei. “This bill delivers a much-needed and timely reminder that the federal government must comply with state rules and decisions when it comes to Nevada’s ground water.”

The Water Rights Protection Act:

Prohibits agencies from implementing a permit condition that requires the transfer of privately held water rights to the federal government in order to receive or renew a permit for the use of land;

Prohibits the Secretary of the Interior and the Secretary of Agriculture from imposing other conditions that require the transfer of water rights without just compensation;

Upholds longstanding federal deference to state water law;

Has no cost to taxpayers.

Background:

The Forest Service claims that it is implementing the agency permit condition to prevent water rights from being sold off and used improperly, however according Forest Service Chief Tom Tidwell, there have never been any such cases where the rights have been used improperly. In a November 2011 hearing, Tipton asked Tidwell if there were any examples of this occurring in the past, to which Tidwell responded with a resounding, “No.” Furthermore, it was shown that the language of the water clause offers no guarantee that the Forest Service could not divert water to other locations or direct water for another purpose altogether. Watch their exchange here.

A senior official from the Forest Service told state legislators Thursday that the agency is pressing ahead with a new rule to tie permitting for ski areas to Forest Service control of water rights used for snowmaking and other ski area functions.

In Washington on Thursday, U.S. Rep. Scott Tipton, R-Cortez, introduced a bill to block the policy. He has bipartisan backing from Rep. Jared Polis, D-Boulder, whose district includes some of Colorado’s biggest ski areas.

Back in Denver, Jim Peña, associate deputy chief of the Forest Service, tried to assure members of the Legislature’s water committee that his agency isn’t trying to take anyone’s water. The Forest Service wants to make sure that water rights used for skiing aren’t sold and converted to other uses, he said.

“Sustaining ski opportunities in the long term is exactly our interest in developing a new ski water right clause,” Peña said.

But reaction to his testimony ranged from skeptical to hostile.

Sen. Greg Brophy, R-Wray, called the plan an illegal taking of private property.

“If you want to make sure the water stays there for that particular use, you can buy it,” said Brophy, who is running for governor. “What you can’t do is take it from its rightful owner.”

U.S. Rep. Scott Tipton this week introduced federal legislation that would prevent the Forest Service from implementing a permit clause requiring ski areas to transfer water rights to the federal government. Tipton’s brief HR 3189 was referred to the House Natural Resources Committee and the House Agriculture Committee with co-sponsorship from three Republican congressmen — from Nevada, Utah and California — and Colorado Democrat Jared Polis. The proposed legislation would prohibit any agency under the Department of Interior or Department of Agriculture from conditioning permits or leases on the transfer of private water rights.

That’s exactly what the Forest Service proposed in a 2011 revision of its ski-area-permit regulations. The agency said the water clause ensured that water rights would never be severed from public land. “Water is becoming more valuable. Demand for water has increased over the last 30 years for many reasons,” Jim Peña, associate deputy chief of the Forest Service, told the Colorado legislature’s water committee at a meeting Thursday. “Simply put, more people require more water, and climate conditions impact the availability of that water. We are aiming to manage the risk of water being repurposed within the confines of the permit.”

The ski industry sued the agency in early 2012, arguing that the new clause was a seizure of privately obtained water rights and usurped state water law. A district judge in December sided with the ski industry, ruling that the agency violated federal procedures when it formulated the new permit clause. The Forest Service last spring launched a series of public meetings to review the water-rights clause in ski-area permits.

Tipton and several other Western congressmen voiced concern over the agency’s plan for ski-area water rights. Tipton spokesman Josh Green said the Western Slope Republican has been holding hearings, roundtable events and meetings with constituents on the issue for the past two years. “Through all this, one thing is abundantly clear: The Forest Service intends to move forward with the poorly conceived policy,” Green said. “You can never act too soon to try to stand up for Western water rights.”

More coverage of the NSAA and the controversy here and here (scroll down).

“After four years of having the privilege to work alongside the enormously talented, hard working people at USDA, and especially my colleagues in the United States Forest Service and Natural Resources Conservation Service, I am today announcing my upcoming departure from USDA.

We have worked together to accomplish tremendous things in the past four years. With the Forest Service, we developed a new Planning Rule for management of our national forests and grasslands, accelerated restoration of millions of acres of forests and watersheds, and supported traditional forest products and other uses of the national forests. We expanded recreation opportunities and supported thousands of recreation-related jobs, protected Native American sacred sites, and invested in our young people and veterans by giving them jobs and training opportunities. We worked with partners around the country to create new public-private partnerships, fostering an ethic of collaboration. In addition, we protected communities from catastrophic wildfires, supported State and private forest landowners, and conducted critical forest research.

With NRCS, we invested in landscape scale conservation from the Chesapeake Bay to the Everglades to the Bay Delta. We enrolled a record number of acres of private working lands in conservation practices, expanded the application of voluntary certainty and safe harbor agreements with individual landowners, introduced new programs and technology that will support the ability of private landowners to implement conservation practices and protect wildlife, and assisted Gulf Coast states and landowners in addressing water quality impacts to the Gulf of Mexico. We also played a leadership role in responding to natural disasters from Hurricane Sandy to the Deepwater Horizon oil spill.

I am so proud of what we have been able to accomplish. I thank the President and Secretary Vilsack for their leadership and for having given me the opportunity to serve my country in this role. While this has been a very difficult decision for me, I believe it is a good time to transition to new leadership and I have every confidence that my successor will continue to achieve the results that I’ve witnessed from NRCS and the Forest Service over these past years.”

Statement from Secretary Tom Vilsack

Over the past four years, Under Secretary Harris Sherman has led a comprehensive push to enhance and modernize the ways in which we conserve our forests and protect our natural resources. Under his leadership, USDA carried out a record level of conservation work alongside farmers, ranchers and forest landowners. He led the way to a modernized forest planning policy that recognizes the multiple uses of our forests, and will lead to more resilient forests and greater rural economic opportunity. Harris helped target our conservation efforts in priority areas, and forged new partnerships that have strengthened a collaborative approach to landscape conservation and forest restoration. As a result, even in a time of tighter budgets, USDA is in a position to continue achieving positive results in conservation for decades to come. I appreciate his service to our nation, and I wish Harris Sherman all the best in the future.

The Coloradan who has headed the U.S. Forest Service is leaving after a tumultuous four years when the agency did battle with ski areas and fought some of the state’s most destructive blazes. Harris Sherman, a former head of the Colorado Department of Natural Resources, will leave his post May 8 as undersecretary of natural resources and the environment in the Department of Agriculture. Sherman said now is “a good time to transition to new leadership” in the spot, which includes direct supervision of the Forest Service and Natural Resources Conservation Service.

He joins fellow Coloradan Ken Salazar, who served four years as secretary of the interior, in leaving the administration in President Barack Obama’s second term.

In his letter of resignation, Sherman listed a new forest planning rule as a major accomplishment, as well as protecting communities from the ravages of wildfires. Sherman brought “Colorado common sense to the Obama administration and its management of our national forests and public lands, which create jobs and are a big part of our high quality of life,” said U.S. Sen. Mark Udall, D-Colo. Udall lauded in particular Sherman’s work on the Ski Area Recreational Opportunity Enhancement Act, which allows ski areas to increase tourism and job creation throughout the year.

During Sherman’s tenure, the Forest Service also became embroiled in a court fight with the National Ski Area Association over the agency’s demand that ski areas turn over new water rights in order to obtain permits to operate in national forests. A federal judge ruled that the Forest Service had failed to involve the public in drafting the directive and ordered the agency to reconsider the directive and seek public comment. The Forest Service has yet to announce plans for public meetings to discuss the directive.

“As you know, I am a Westerner at heart and, after four years, I am feeling a strong ‘tug’ from that direction, particularly from my family in Colorado and California,” he wrote. “Although this has been a difficult decision for me, I think it is a good time to make a transition.”[…]

In his letter to Forest Service employees, Sherman outlined his agency’s achievements over the last four years, including forest planning rules, land conservation, public-private partnerships that assisted in forest and watershed restoration projects, expanded recreation opportunities at ski areas and streamlining review and approval processes. “We worked with partners around the country to create new public-private partnerships, fostering an ethic of collaboration,” he wrote. “I marvel that in the face of declining budgets, record fires and temperatures, and challenging forest health conditions, we have achieved so much.”

Sherman’s departure comes as the Forest Service installs sequestration budget cuts and begins harvesting public input on a controversial plan to control water used by ski areas on public land. Sherman said he will remain at the USDA through May 8 to assist in the transition toward a new undersecretary.

The committee unanimously approved House Joint Resolution 13-1004, which encourages the U.S. Department of Agriculture Forest Service to withdraw a 2012 directive that requires ski areas to turn over their water rights, without compensation, for federal lands leased from the Forest Service.

HJR 1004 points out that federal law requires federal agencies to abide by the water laws of the states in which federal lands are located. However, according to resolution sponsor Rep. Jerry Sonnenberg (R-Sterling), the Forest Service drafted the 2012 directive in violation of that law, known as the McCarran Act.

The National Ski Areas Association filed a lawsuit against the Forest Service over the directive, and a Denver District Court judge recently ruled in favor of the NSAA, but only on procedural grounds and not on the substance of the directive. According to testimony in Monday’s hearing, the judge told the Forest Service that “they didn’t do it right” when they issued the directive without public input, a violation of federal administrative procedures.

Meanwhile, here’s the USFS release about the public meetings this spring (Chris Strebig):

The U.S. Department of Agriculture Forest Service announced today a public process to develop a directive regarding water rights on National Forest System lands that have ski areas and other permitted uses. The Forest Service plans to begin the public process this spring.

“Establishing an inclusive process on this important issue will help meet long-term goals,” said Rocky Mountain Regional Forester Daniel Jirón. “Maintaining the water with the land will ensure a vibrant ski industry, and resilient and healthy national forests and mountain communities into the future.”

Regional Forester Jirón testified today before the Colorado General Assembly House Agriculture, Livestock and Natural Resources Committee at the Colorado State Capitol in Denver. The Committee scheduled the hearing to address water rights and ski areas brought up through Colorado House Bill 13-1013 and Colorado House Joint Resolution 13-1004.

On December 19, 2012, the United States District Court for the District of Colorado in National Ski Areas Association, Inc. v. United States Forest Service ruled to vacate the 2012 Forest Service directive on ski area water rights. The Court declined to rule on the substance of the Forest Service directive, but indicated the Agency should proceed with public notice and comment for this type of directive.

The Forest Service Directive System consists of manuals and handbooks that codify policy and provide administrative direction for Forest Service employees to manage National Forest System lands.

“Together, we can find solutions that support a strong ski industry, keep the water with the land to sustain local communities, and ensure the long-term viability of this unsurpassed winter recreational experience,” said Jirón. “We think it is a good idea to engage the public and communities to map out next steps on this issue.”

The National Forest System lands comprise 192 million acres of forest and grasslands in 43 states. The Forest Service estimates that downhill skiers and snowboarders at 22 ski areas on national forests in Colorado contribute approximately $1.5 billion annually to Colorado’s economy.

Oral arguments in the lawsuit brought by the National Ski Areas Association against new permit requirements from the U.S. Forest Service were heard on Thursday. Here’s a report from Jason Blevins writing for The Denver Post. From the article:

On Thursday, U.S. District Judge William Martinez entertained oral arguments from both sides in a case that could decide the fate of hundreds of millions of dollars worth of ski-area water rights. Citing 140 years of federal laws and court decisions, NSAA lawyer Zeke Williams argued the agency overstepped its authority with the new directive, which he called a “sea change in agency law.”

“The agency can point to no statute that authorizes it to condition use and occupancy permits on the permit holder assigning to the Forest Service property that is not federal property,” Williams said.

The Forest Service says it changed the law to prevent ski areas from selling water rights connected to federal land…

“Why would a ski area sell off water rights and leave itself with insufficient water to operate a ski area?” he said. “Then you are not a ski area anymore.”

Williams argued that the Forest Service rule was a “draconian and punitive solution to a hypothetical problem.”[…]

Williams on Thursday argued that the agency violated the Federal Administrative Procedural Act by not offering legal support for the rule and not soliciting public input on the new rule…

“In the history of this policy, it is very clear that we are not deviating from the overall history of the policy,” Samford said. “If you have a federal permit on federal land and you want water rights in service of that permit you need to claim them in the name of the United States.”

Meanwhile here’s a summary of snowmaking efforts around the west from The Durango Telegraph:

With warm temperatures and scarce snow, winter has been long for snowmaking crews at most Western ski resorts. For many, the work typically ends by Christmas or at least early January.

Not this year. Snowmaking continues even as storms have now arrived.

With the rockiest start to winter in decades, many resorts will probably re-evaluate investments in water, snowguns and other infrastructure, say ski industry officials.

“Snowmaking is something you can never take for granted,” says Michael Berry, president of the National Ski Areas Association and a former supervisor of snowmaking crews. “It takes constant upgrading, constant improvements, constant effort to improve your water rights. And just when you think you don’t need it, you will need it the most,” he added.

Spanked by two hard-luck winters in 1976-77 and 1980-81, most Colorado destination ski areas invested heavily in snowmaking.

This investment paid off this year for Steamboat. Despite warm nights that idled snowmaking crews in November and December, the ski area had 1,900 acres, or 65 percent, of the terrain open at Christmas. That was among the best in Colorado. Only two ski areas, Durango Mountain Resort and Wolf Creek, both in the southwestern tier, were 100 percent open.

Last summer, Steamboat bought seven new energy-efficient snowmaking guns, which use 30 percent less energy.

Water is another vital component of snowmaking. At Breckenridge, where snowmaking continued as of Jan. 21, the ski area had consumed 900 acre-feet, compared to the normal 700 to 750 acre-feet, according to Glenn Porzak, the resort’s water lawyer.

Not all resorts have substantial snowmaking, however. Particularly the ski areas along the crest of California’s Sierra Nevada. which suffered almost no natural snow and just thin ribbons of man-made.

“I don’t think I have ever been in a mountain area in the latter of part of January where there was so little snow,” said Porzak after a ski industry meeting at Squaw Valley. “It was brutal.”

Porzak has helped ski areas in Western states secure water rights for snowmaking since the 1970s. After every significant drought, ski areas have invested heavily in additional snowmaking capabilities. The more well-heeled have invested even when no drought is imminent.

This year, Porzak expects ski areas to engage in an intense re-evaluation of water needs and snowmaking infrastructure. The need is most obvious in Lake Tahoe, where fresh snow is often measured by the foot, not the inch.

This year, however, Squaw had just two runs covered with snow as of Jan. 19, the day before natural snow started arriving. Heavenly and Northstar both have sophisticated snowmaking systems, which put them in better stead for the tough early season this winter, says NSAA’s Berry.

After intense lobbying — which included stern letters from a host of congressman and senators — last week the Forest Service rebuffed the calls for a moratorium and issued the new rule as an 18-month moratorium. The resort industry, led by the 121-resort National Ski Areas Association, answered with a promise to sue the agency, which hosts nearly 90 percent of all U.S. ski areas.

“This has to do with water rights in general and how water rights are treated,” said Michael Berry, president of the NSAA. “We believe they have crossed the rubicon and this has the potential to be very, very impactful. We have no guarantee that they will continue to use the water for purposes of ski area business.”

Since 2004, the Forest Service has co-owned water rights secured by ski areas operating on federal land. Before that, under the 1986 National Forest Ski Area Permit Act, ski area water rights on public land were owned by the federal government. So really, said Jim Pena, acting chief of the Forest Service, “this isn’t new.”

“This permit clause is intended to clarify some of the gray areas,” Pena said. “This was a result of lots of discussion with the ski industry over the last year. This requires that water rights on National Forest System land remain with the federal government so we don’t sever that resource from the land.”[…]

Pena said his agency has already issued three new operator permits — in Colorado, Washington and California — with the new clause and those were accepted without any problems. “If a permittee develops water for the activity on (state) public land, they are required to develop that water in the name of the state. It’s the same with National Parks and the Fish and Wildlife Service as well,” Pena said. “It all goes back to wanting to make sure those public resources are kept together and we want to provide that stability for the long term.”

More coverage from Katie Klingsporn writing for The Telluride Daily Planet. From the article:

The NSAA represents hundreds of ski areas across North America, Telluride Ski Resort among them…

“Water rights in the West are part of the asset base of the ski areas that they have acquired in the marketplace and they are an important part of the balance sheet of a ski area,” Association president Michael Berry told the AP.

The Telluride Ski Resort operates under a permit from the USFS, but it currently has a 40-year permit and so is not in imminent danger of the effects of the USFS clause, said Dave Riley, CEO of Telluride Ski & Golf (Telski).

However, Riley said Telski supports NSAA’s efforts to reverse the measure…

Pena said the clause, issued as an interim directive, can be adjusted before it’s finalized and the Forest Service would work with permit holders to ensure it “works for everybody.”

Berry wasn’t persuaded.

“We have no guarantee that they will continue to use the water for purposes of ski area business,” he said. “The government could decide to use the water and apply it to other uses or even sell it to urban water systems.